Our Secret Constitution | Mises Institute

George P. Fletcher is widely regarded as an authority in criminal law, and he has taught at Columbia University Law School for many years. He is also an authority on Kant’s moral philosophy and, contrary to the secular views of most of his contemporaries, is interested in the religious origins of our belief in moral rights. In addition, although he is firmly committed to equality—understanding this in the modern sense as including the Civil Rights Act of 1964—as well as welfare and social rights, and in his book Our Secret Constitution: How Lincoln Redefined American Democracy (Oxford University Press, 2002), he also makes an honest effort to understand the Southern point of view before the War Between the States, albeit strongly rejecting it. An unusual combination of views, you must admit; and the book contains many provocative arguments. In what follows, I will comment on a few of these.

Fletcher has reservations about the Declaration of Independence, although he praises parts of it, and he views the Constitution with considerable skepticism. What matters most to him about the Declaration is that America came together as a nation. Further, unlike most European nations, America was not founded by virtue of being a homogeneous people but rather on the “higher-law” principle that all men are created equal. In this connection, he says,

What, then, is the point of the Declaration’s claim that all men are created equal? The answer is twofold. First, there is an implicit claim that as a people the Americans are equal to the British and all other peoples. If any people should be able to consent to their governments, then the Americans, too, enjoyed that fundamental right… A more compelling reading of “All men are created equal” would be that all human beings are equal among themselves as well as being equal as collective entities. They are equal among themselves precisely in that they possess inalienable rights—the same inalienable rights to “life, liberty, and the pursuit of happiness” possessed by everyone else.

This clearly applies to blacks as well as whites and the Declaration is deficient in that it fails to call for an end to slavery, at least it recognizes that Americans have come together as an “organic entity.”

The Constitution of 1787—though not without its good points—had two main defects. First, although the preamble recognized that Americans came together as “We the People” to choose their own form of government, it failed to failed to rule out explicitly the argument of the South that the Constitution was formed by the states, with states having the right to secede if, in their judgment, the terms of the original compact had been violated. Second, it restricted popular sovereignty and called for government by an elite who were deemed fit to rule over the masses. It rejected the direct election of the president, instead leaving the choice to the Electoral College, and also established that the Senate would be chosen by the state legislatures rather than by popular vote. (By the way, Fletcher does not note that the term “Electoral College” does not occur in the Constitution).

Abraham Lincoln became fully aware of these deficiencies during the war of 1861 to 1865 and, in the Gettysburg Address, called for a “new birth of freedom” that would—over the course of time—fully bring into being “government of the people, by the people, for the people.” Much of the form of the original Constitution might remain, but its spirit would be radically different.

Lincoln declared that the war had been fought so that the government he wanted “shall not perish from the earth,” but he had to confront an obstacle to his goal. The North might defeat the South militarily, but what was his answer to the strong Confederate argument that if he wanted the people to have the right to choose their form of government, didn’t the states have the same right? His response was an odd one, though Fletcher enthusiastically shares it:

He would have little reason to argue that every generation had the right to consent or withhold consent to its government. Now, the nation was in place, and the nation made claims across time. No particular generation could undo the work laid so carefully in the past.

And why not? It is because,

…the slaying of 620,000 men should be understood as an offering on the altar of fraternity. For every seven slaves who were liberated, at least one man had to die. They gave their lives so that the nation “might endure”. . . Lincoln repeats the claim of nationhood [and stresses that] the Civil War threatens the survival of the nation. The nation, of course, includes both sides of the conflict.

I quite fail to see the logic of this argument. Wouldn’t it also justify an argument that Lenin’s victory in the Russian Civil War redeemed Bolshevik tyranny?

Fletcher is fully aware that Lincoln thought that blacks were inferior to whites in many respects.

There is ample evidence that Lincoln regarded blacks as morally inferior to whites. He said so in numerous speeches in the 1800s. But despite these “racist” assumptions that were so common in his time, he fervently regarded slavery as an evil. It was an evil precisely because it deprived blacks of their inalienable rights to life, liberty, and the pursuit of happiness. They could not enjoy the fruit of their own labor.

Fletcher does not mention that, although Lincoln did indeed oppose slavery, he was prepared to tolerate its indefinite continuance, so long as the slave states rejected secession. Leaving the “organic entity” could be tolerated in the slightest, no matter how much blood it cost.

Fletcher sees Lincoln’s call for democracy in the Gettysburg Address as extending far beyond what Lincoln envisaged. The program of the Radical Republicans was a good first step, although it did not go far enough. Unfortunately, the post-war Supreme Court interpreted the Reconstruction Amendments in a reactionary way, gutting their radical spirit. The new constitution that Lincoln and the Radical Republicans wanted, though in different ways, had to be shelved for nearly a century—hence, the “secret constitution” of the book’s subtitle—until the Warren Court brought out some of its true meaning. Thaddeus Stevens would be proud of his latter-day disciple.